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HomeMy WebLinkAboutCP-21-CR-0000264-2012 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : EARL LAMBERT CAMPBELL, JR. : CP-21-CR-0264-2012 IN RE: MOTION TO SUPPRESS OPINION AND ORDER OF THE COURT Masland, J., June 22, 2012:-- Defendant,Earl Lambert Campbell, Jr., is charged with possession with intent to deliver a schedule I controlled substance and possession of a small amount of marijuana. He filed a motion to suppress evidence upon which a brief hearing was conducted on June 21, 2012. Following argument by counsel and review of the pertinent case law, for the reasons set forth below, Defendant’s motion is denied. I. Findings of Fact 1. On January 19, 2012, Detective Christopher Collare (“Affiant”) applied for a search warrant from Magisterial District Judge Jessica Brewbaker. 2. The search warrant sets forth the Affiant’s extensive experience, which includes fifteen years as a police officer, (currently assigned to the Cumberland County Drug Task Force), involvement with more than fifty drug investigations, and the execution of “numerous search warrants which have led to the seizure of contraband, controlled substances, weapons and money which have been identified as proceeds from illegal activities.” 3. Paragraph 4 of the affidavit of probable cause sets forth at length the Affiant’s involvement with a confidential informant who purchased heroin from the Defendant at 529 North West Street “during the past 72 hours.” CP-21-CR-0264-2012 4. In paragraph 5 of the affidavit of probable cause, the Affiant noted that based on his training and experience, drug suppliers not only possess large quantities of controlled substance but also “paraphernalia, records, packaging materials, scales, money from drug transactions along with other controlled substances.” 5. The Affiant concluded that the lawful entry into the aforesaid premises would result in the seizure of “paraphernalia, records of illegal drug transactions, telecommunication devices with names and phone numbers of drug suppliers and users, and possibly other controlled substances.” 6. Based on the foregoing, the Affiant identified the following items to be searched for and seized: “heroin, drug paraphernalia, records of drug transactions to include cell phones and cell phone records.” 7. Magisterial District Judge Brewbaker signed the search warrant at 10:58 a.m., on January 19, 2012. 8. The search warrant was executed on January 19, 2012, at 2:45 p.m. and resulted in the seizure of, among other things, approximately 47 bags of suspected heroin, digital scales, approximately $400 in cash from the Defendant and a Motorola cellular phone. II. Discussion The Defendant seeks to suppress all evidence seized from 529 North West Street on the basis that the search warrant was stale and overly broad. We will address each of those claims below. -2- CP-21-CR-0264-2012 A. Staleness Although Defendant asserts in his motion that “the information is stale in that it alleges a controlled purchase from the residence within 72 hours of issuance of the warrant,” we know of no authority for the proposition that a controlled purchase of drugs within 72 hours is per se stale. Rather, we find the following analysis of this issue by our Supreme Court to be clearly supportive of the Commonwealth’s position in this case: ‘Staleness’ when raised must not be determined by rigorous exactitude, but rather by the experience of reasonable men, cognizant that events in the real world, and more specifically, criminal events, have a life of their own, in which hours and days are measured not by clocks and calendars, but rather by who will be watching, and when the coast will be clear. Many police informants, particularly in drug related offenses, themselves often victims, are hard pressed to know night from morning, and live a permanent dateless time. In such cases the issuing authority should try as close as possible to establish dates. However, where not possible, magistrates should use the experience of reasonable men under the circumstances to prevent offenders, loaded with poisoness contraband, from walking free because the evidence was ‘stale.’ […] [C]ommon sense can determine what is reasonable age under the circumstances. Commonwealth v. Baker, 518 A.2d 802, 804 (Pa. 1986). In the present case, the Affiant supplied the issuing authority with a reasonable timeframe of 72 hours which enabled her to apply a common sense analysis of what is reasonable under the circumstances. Given the experience of the Affiant, and the relatively recent controlled purchase of narcotics, we find that the Magisterial District Judge properly analyzed the matter in authorizing the search warrant. Perhaps, staleness is in the eye of the beholder, and not unlike other jurists have noted with -3- CP-21-CR-0264-2012 respect to art and pornography, we will know it when we see, or smell it. In this case a purchase at a residence within 72 hours easily passes the sniff test. B. Overbreadth Defendant’s argument regarding overbreadth is only slightly more compelling. As noted in our findings of fact, “heroin, drug paraphernalia, records of drug transactions to include cell phones and cell phone records” were sought. In claiming that this is overly broad, Defendant cites Commonwealth v. Grossman, 555 A.2d 896 (Pa. 1989), in which the search warrant sought “all insurance files” from the defendant who owned a local insurance agency had an extensive cliental with over 2,000 active cases. Clearly, that was a fishing expedition. However, in the case sub judice, the facts do not warrant a similar finding. As with the issue of staleness, we view the totality of circumstances and find the request to be reasonably tailored to the circumstances of this case. Rather than going on a deep sea excursion as the Commonwealth did in the Grossman case, our experienced Affiant waded carefully into a shallow creek with which he was very familiar. Knowing that a drug transaction had recently occurred, he concluded that the residence would also contain paraphernalia, records of drug transactions and telecommunication devices associated with those transactions. We find this to be far from unreasonable or overly broad. To the contrary, common sense and the totality of the circumstances compel us to find it reasonable for the issuing authority to infer that the Defendant’s residence would contain not only illegal drugs, but also the paraphernalia, proceeds and records associated therewith. -4- CP-21-CR-0264-2012 III. Conclusion For the foregoing reasons we find that the search warrant in question possessed the requisite probable cause to validate the evidence seized and accordingly, enter the following order. ORDER OF COURT AND NOW, this ________ day of June, 2012, the motion of Defendant to DENIED. suppress evidence is By the Court, _______________________ Albert H. Masland, J. Jonathan R. Birbeck, Esquire Office of the District Attorney Timothy Clawges, Esquire For Defendant :saa -5- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : EARL LAMBERT CAMPBELL, JR. : CP-21-CR-0264-2012 IN RE: MOTION TO SUPPRESS ORDER OF COURT AND NOW, this ________ day of June, 2012, the motion of Defendant to DENIED. suppress evidence is By the Court, _______________________ Albert H. Masland, J. Jonathan R. Birbeck, Esquire Office of the District Attorney Timothy Clawges, Esquire For Defendant :saa